United States v. The Matilda , 26 F. Cas. 1200 ( 1813 )

Upon this point,

THE COURT

adjudged that the evidence did not support the allegation, and therefore dismissed the libel; but did not decree the restoration of the property. An appeal was immediately obtained and the case brought up to the circuit court at this place, where it was argued at considerable length, at the last term, before the chief justice of the United States, and two points were made, 1st. Was the Matilda bound to an enemy port? 2d. Did the conduct of the crew of the ship affect the right of the libellants in tbe present proceeding? It was conceded that if tbe Matilda was really bound to a British port, the offense was complete. But it was contended that there was no evidence of such fact, except a vague inference to be deduced from tbe mere possession of tbe license; for as to the witnesses, it was said, they were interested in the distribution of prize, and therefore incompetent. 4 C. Rob. Adm. 68; 5 C. Rob. Adm. 307. That the presumption such as it was, in favor of the libellants, was answered by the positive oath of Captain Jenkins, who'was a competent witness; and that the licenses were intended as a fraud upon the enemy; a practice which is always permitted.

Effect of equity rules in admiralty courts. See Hutson v. Jordan [Case No. 6,959], approving case in text.

Upon the second point the counsel for the claimants relied upon 2 Ruth. Inst. 564; 3 C. Rob. Adm. 160-184; Marten’s 2 Azunia, 354-362; and Browne, Civ. & Adm. Law, 461.

The counsel for the libellants took a survey of the evidence, and endeavored to show by fair inference the unlawful purpose of the claimants. He admitted that the claim' and answer as sworn to by Captain- Jenkins should be taken as though the captain had been examined on interrogatories. Upon the second point he introduced and relied upon as conclusive authorities, Browne, Civ. & Adm. Law, 281, 282, 453, and 8 Term R. 224.

The Chief Justice asked if Captain Jenkins was a competent witness, and being answered by the libellant’s counsel that he was, he was clearly of opinion that the charge against the schooner had no foundation. He remarked upon the regularity of the ordinary papers —he thought the letter of advice contained no evidence of criminal intent, but rather the contrary. He stated the question, to be, whether the claimants intended a voyage to an enemy port or not. But he saw no evidence of such intention, save that of the license: that it was common and not at all improper to carry papers to deceive the enemy; that the carrying of the license was to enable them to prosecute a voyage to a neutral port under the protection of the license; and that the evidence of Captain Jenkins cleared the ease of all doubt by stating the real object, and positively denying the inference drawn from the license. Here the libellants’ counsel called the attention of the Chief Justice to the fact, that Jenkins was part owner of the schooner and her cargo, a circumstance not recollected when the concession was made. The Chief Justice immediately replied that he was interested and of course incompetent. The counsel for the claimants then argued, that this answer should be received as an answer in chancery is; and if so, the answer is to be taken as true until it be disproved. The Chief Justice admitted the rule in the court of chancery, as to the negative matter of an answer, but not in a ease where it asserts a right affirmatively in opposition to the complainant’s demand; but he took this distinction between a case in chancery and a case in admiralty: in the former, the complainant calls upon the defendant to purge his conscience and disclose facts; and by this appeal to his conscience the complainant makes the answer evidence: in the latter case no such demand or appeal is made.

The Chief Justice then said that the case was very different from what he conceived of it under the evidence of Jenkins; and expressed a willingness to let it lie over for further proof if the libellants had a prospect of obtaining any; but being told they had not, he said he was still of the same opinion; and affirmed the decree of the district court. He also decreed the restoration of the property, but without damages. He gave no opinion upon the second point